SIXTH DI VISI ON December 18, 2009

1-08-2739 IL LI NOIS BONE &

JOINT IN STITUTE, Plaintiff-Appellee,

v. THOMAS KIME, Defend ant-App ellant. ) ) ) ) ) ) ) ) ) Appeal f

rom the Circu it Court of Cook Cou

nty 05 M1 136203 Honorable Lawrence O’Gara, Judge Presiding

JUSTICE McBRI DE delive

red the o pinion of t

he court : The defendant brings an interlocutory appeal purportedly

as a matter of right under Supreme Court Rule 304(b)(3), which authorizes this court to review an order g ranting the relief requested in a petition under §2-1401 of the Code of Civil Procedure. 210 I ll. 2d R. 304(b)(3); 735 IL CS 5/2-1401 (West 2004) (Code). However, the order the defe ndant challenges grante d what the p laintiff

sty led as a motion to re instate it s case un der §2-1 301(e) o f the Code , the cir cuit court re jected the defen

dant’s c ontention

that the p laintiff

was req uired to c ome within

the terms of §2-1401 rather than 2-1031(e), and we agree with the court’s determination. 735 I LCS 5/2- 1301(e) , 2-1401 (

West 2004) . There

is no rule of appel late pra

ctice wh ich allow s a party

to appeal as a matter of right on an interloc utory basis from an or

der granting a §2-1301(e ) motion. Accord ingly, we dismis s the appe al. Shortly after the de fendant filed this appeal, the plaintiff motioned to dismiss for lack of jurisdiction. We did not have the benefit of the record on appeal or a clear statement of the

necessa ry facts a nd denied the motion. The plain

tiff did no t include

this arg ument in its1-08-2739

2

subsequent appellate brief, nonetheless, we have a duty to consider our jur isdiction. In re Tiona W. , 341 Ill. App. 3d 615, 619 (2003) ( sua sponte dismissing appeal for lack of jurisdiction where order at issue was interlocutory ). See also Mar Cement, Inc. v. Diorio Builders, Inc. , 153 I ll. App. 3d 79 8, 800 (19 87) (indi cating appella te court must deter

mine its jur

isdiction p

rior to deciding the merit s of an ap

peal); Hawes v. Luhr Brothers, Inc. , 212 Ill. 2d 93, 106 (2004) (indicating appellate court erre d by addressing merits of appeal where jurisdiction was lacking)

. We convened the parties for oral arg uments that were limited to this question. Chicago attorney

Steven J. Sparacio initiated this action by filing a c omplaint on May 27, 2005, on be

half of I llinois Bone & Joint I

nstitute ( IBJI

) agai nst Thomas

Kime, all eging

Kime breached a contract requir ing pay ment of $38,159 for medical services rendere d between September 21, 2001, and July 24, 2002. The pleading designated IB JI’s attorney of record as “The Law Off

ices of Steven J. Sparacio,” which suggests Spara cio was a sole practitioner. Defendant Kime appeared pro se , but then hired a lawyer who drafted and spindled a motion for presentation on October 4, 2005, to obtain leave to file a substitute appeara nce. Sparacio did not appear in court on October 4, 2005, when the judg e granted the motion for leave to file a substitute appearance and entered a n order drafted by

Kime’s new attorney

which continued the case to the court’s status call on November 9, 2005. Sparac io died on October 9, 2005. Kime’s attorney wa s the source of an additional status date: on October 24, 2005, the attorney filed a §2- 615 motion to strike IBJI’s c omplaint, scheduled the motion for presentation on November 14, 2005, and sent notic e to Spara

cio’s bus iness add

ress. 735 IL CS 5/2-615 ( West 2004) . It is undisputed that Kime’s attorney was unaware of Sparacio’s dea th. Next, although Kime’s1-08-2739

3

attorney had dr

afted the court order setting the ca se on the status call for November 9, 2005, the attorney did not appea

r in court that day; no one appeared in Sparacio’s stead; and the judg e sua sponte dismissed IBJI’s c ase for want of prosecution (DWP). Although there is a preference for resolvin g case s on the me

rits ( Smith v. City of Chicago , 299 Ill. App. 3d 1048, 1054 (1998), citing 735 IL CS 5/1-106 (West 1996)), a trial court may dismiss a civil action due to the plaintiff’s failure to prosecute with due diligence , in order to manage the court’s docke t and avoid unnecessary

burdens on the court and opposing parties. 24 Am. Jur. 2d §61-62, at 52-53. Despite the DWP, on November 14, 2005, the matter was called as to the status of Kime’s §2- 615 motion and an additional order was entered. 735 I LCS 5/2-615 (West 2004). The November 14th order indicates the plaintiff’s counsel had not appe ared as scheduled rega rding the 2-615 motion and that the matter was being continued to November 29, 2005, “ without further notice.” On November 29, 2005, the same judg e entered an order stating: “This matter coming on status on Defendant’s motion to dismiss; counsel for defendant having appeared and counsel f or plainti ff faili

ng to ap pear; mo tion is gr

anted. Ca se dismisse d pursuan t to 735 I LCS 5/2-615.” The parties agree tha t when the judge entered the continuance order on November 14th and the dismissal order on November 29th, he was unaware that he had also entered the DWP on November 9th. Approximately 28 months later, on March 24, 2008, I BJI, through new counse l, filed a motion to vacate the DWP order and the §2-615 order, noting that both orders were entered after Spa rac io’ s de ath

and tha t no tic e of

the sec ond sta tus date ha

d be en m ail ed afte

r hi s pa ssin

g. I BJI argued the DWP order remained interlocutor y until the expiration of the statute of limitations on1-08-2739

4

the underlying

contract claim, which was 10 y ears. See 735 ILCS 5/13-206 (West 2004) (actions on written contracts must be commenced within 10 y ears). Pursuant to §13-217 of the Code, a DWP ordinarily remains an interlocutor y order until the passa

ge of one y

ear or the expiration of the statute of limitations on the underlying a ction, whichever is greater. 735 I LCS 5/13-217 (West 1994) (when an action is DWP’d, the plaintiff may commence a new action within one ye ar or wit

hin the re maining period of limitation, whichev er is gr eater) ; S.C. Vaughan Oil Co. v. Caldwell, Troutt & Alexander , 181 Ill. 2d 489, 502 (1998) (DWP becomes final only when the §13-217 p eriod for refili

ng expire s); Progressive Universal Insurance Co. v. Hallman , 331 I ll. App. 3d 64, 67 (2002) (DWP is interlocutory as long as the option to refile is still available to the plaintiff); Brite Lights, Inc. v. Gooch , 305 Ill. App. 3d 322, 325 (1999) (DWP becomes final when the 13-217 refiling period expires because at this point the order effectively ascertains and fixes absolutely and finally the rights of the parties in the lawsuit). I BJI also addressed the 2-615 order, contending it remained interlocutory because it did not dismiss the case with prejudice. 735 IL CS 5/2-615 (West 2004). IBJI base d its motion to vacate on §2-1301(e) of the Code, which provides: “The court may in its discretion, before final order or judgment, set aside a ny default, and may

on motion filed within 30 days after e ntry thereof

set aside any f

inal order or judgmen t upon any

terms and

condition s that sha

ll be rea sonable. ” 735 I

LCS 5/2 -1301(e ) (West 2004). However, Kime responded that the second dismissal order was a final, appealable order, which forced IB JI to meet the more difficult requirements of a §2- 1401 petition for relief from final judgment, including to seek relief within two y ears, and to plead and prove the existence of a meritorious claim as well as due diligence in both the underly ing action and the filing of the1-08-2739

5

petition f or relie f. 735 I

LCS 5/2 -1401 (We st 2004). I BJI di sagre ed and did

not attempt to come within the terms of §2-1401, and, in any event, had already

missed the statute’s two-yea r window. 735 IL CS 5/2-1401 (West 2004). On June 9, 2008, after full briefing and oral argument, the judge rejec ted Kime’s 2-1401 argument and gr anted IBJI ’s motion in accordance with §2-1301(e), specify

ing that “the history

of this case provides the court with extraordinary circumstances, including the death of plaintiff’s for mer counsel.” 735 ILCS 5/2-1301(e), 2-1401 (West 2004). This was a different judge than the one w ho entered the two dismissal orders. The judge also rejected Kime’s subsequent motion for re consideration. Regarding our jurisdiction, Kime acknowledg es that the sua sponte DWP order was interlocutory due to §13-217' s express terms, however, he contends the 2-615 dismissal order entered 20 day s later was a final, appealable order because it granted a motion attacking the sufficiency

of IBJI ’s allegations and it did not expressly g ive IBJI leave to replead or state that the dismissal was “without prejudice.” 735 IL CS 5/2-615, 13-217 (West 1994). He contends these are indications the 2-615 dismissal was a final adjudication of the merits of I BJI’s claim. Building on this conclusion, he also contends the interlocutory DWP merged into the 2-615 “final judgment order,” and in effe ct was nullified and does not need to be addressed on appe al. 73 5 IL CS 5/ 2- 61 5 ( We st 20 04 ). Se e g en er al ly DuPage Forklift Service, Inc. v. Material Handling Services, Inc. , 195 Ill. 2d 71, 86 (2001) (interlocutory orders typica

lly merge with a subsequent judgment order for purposes of an a ppeal). Logic ally, then, until the “final judg ment order” was vacated in acc ordance with §2-1401, the judge could not properly consider any

prior order. 735 ILCS 4/2-1401 (West 2004). He concludes that since IB JI did not come within the1-08-2739

6

terms of §2-1401, the judge erred by granting I

BJI’s motion to vacate the dismissal orders and reinstate the complaint. 735 ILCS 5/2-1401 (West 2004). IBJI re sponds that both dismissal orders were interlocutory when the judge properly

exercised his discretion to vacate non-final orders under §2-1301(e) based on leg al and equitable considerations. 735 ILCS 5/2-1301(e) (West 2004). In short, the question of our jurisdiction depends on whethe r the successive dism issal order i s cont rolli ng. In our opinion, the dispositive order was the dismissal for want of pr osecution entered on November 9, 2005. After this DWP was entered, further proc eedings were unauthorized until the order was vacated and the ca use was reinstated to the court’s docket. We reac h this conclusion based on authority such as Davis v. Robinson , 374 Ill. 553 (1940). In that case, the plaintiff nonsuited its c ase and f

iled a dif ferent action, b ut the def endants i mmediate ly f

iled a moti on to vacate the dismissal of the first case and contended the pending motion reactivated the first case. Davis , 374 Ill. at 556. The supreme court de termined that merely

filing a motion to vacate was not enough to restore the first case. Davis , 374 Ill. at 556. The supreme court he ld that “[b]y the dismissal of the former suit the parties were out of court and all furthe r proceedings were unauthorized until the judgment of dismissal was vacated and the cause [was] reinstated [by court order].” Davis , 374 Ill. at 556. Similarly , the plaintiff in Bettenhausen voluntarily nonsuited its a

ction, but then motioned for le ave to amend its co mplaint wit hout first “ask[ing ] to have the order of dismissal set aside.” Bettenhausen v. Guenther , 388 Ill. 487, 489 (1945). When the judge refused to give leave to amend the complaint, the plaintiff appealed. Bettenhausen , 388 Ill. at 489. On appeal, the supreme court reiterated its holding in Davisthat1-08-2739

7

once a su it is dismisse d, furthe

r proce edings a

re unaut horized un

til the judg

ment of dismissal is vacated and the cause reinstated. Bettenhausen , 388 Ill . at 48 9-90, citi ng Davis , 374 Ill. 553. Accord ingly, the supr

eme cour t directe d the cir

cuit cour t to “vac ate all or

ders ent ered in s aid cause subsequent to the order of dismissal.” Bettenhausen , 388 Ill. at 491. Although Davisand Bettenhausen concern voluntary dismissals rather than the involuntary DWP entere d in IBJI’ s action, they illustrate that a pa rty may not continue to litigate a pleading after its dismissal. Like the appellants in Bettenhausen and Davis , Kime continued to appear in this matter after the complaint was dismissed. His attempts to continue litigating a closed case were not effective becaus e unti l the c ourt v acated the di smis sal an d rein state d the p leadi ng, fur ther p roceed ings regarding the merits of the plea ding were unauthorized. Davis , 374 I ll. at 556; Bettenhausen , 388 Ill. at 489-90. Beca

use there was no pleading at issue at the time, entry of the 2-615 dismissal order had no effect on I

BJI’s right to subsequently request reinstatement of its case within the time allowed by §13-217. 735 I LCS 5/13-217 (West 1994). We have also considered whether I BJI’s case could have

been reinstated by

Kime’s conduct o n Novembe

r 29, 2005 , due to the

doctrine of reve stment. Re

vestment i s an equit

able principle discusse d in author

ity c ited in I

BJI’ s respons e brief

and take n up by Kime in his

reply brief and at oral arguments. See Governale v. Northwest Community Hospital , 147 Ill. App. 3d 590, 596 ( 1986); Gentile v. Hansen , 131 Ill. App. 3d 250, 254 (1984). Revestment refe rs to the trial court reacquiring subject matter jurisdiction over a cause, after the court has lost jurisdiction due to its entry of a f

inal judgment order and the passage of 30 days. Gentile , 131 Ill. App. 3d at 254; 735 IL CS 2-1401 (West 2004). As suggested above, ge nerally, the plaintiff’ s only avenue1-08-2739

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of relief in the trial court is to petition for relief from judgment unde r §2-1401. Gentile , 131 I ll. App. 3d at 254; 735 IL CS 2-1401 (West 2004). The exception of revestment occurs when the parties actively

participate in further proceeding s that are inconsistent with the order of dismissal. Wilkins v. Dellenback

, 147 Ill. App. 3d 549, 555 (1986). The conduct of the parties negates the order of dismissal and revests the trial court with personal and subject matter jurisdiction. Wilkins , 147 Ill. App. 3d at 555. I n other words, revestment is the equitable counterpart to a §2- 1401 proceeding. See In Re Marriage of Savas , 139 Ill. App. 3d 68, 73 (1985) (refe rring to the rule of revestment or reinstatement as “a usef ul and equitable safety

net”). “The rule allows parties, by tac it consent, to regard as undone that which oug ht not to have been done, without fear that an opponent may later resurrect the dead orde r.” Gentile , 131 Ill. App. 3d at 256, quoting Faust v. Michael Reese Hospital & Medical Center , 79 Ill. App. 3d 69, 73 (1979). Revestment may be a

pplied to actions which are dismissed for want of prosecution. Gentile , 131 Ill. App. 3d at 255. Howeve r, it can not be app lied to this

particu lar DWP for

numerous

reasons . The fir st reason i s that only

20 day s lapsed b etween

the two dismissal ord

ers, thus , the cour

t had not lo st jurisdiction due to the passage of 30 day s after entry

of a final order, and never nee ded to be “reves ted” with

jurisdict ion. Second, reve stment only occurs w hen both p arties a

ctively participate in proceedings that are inconsistent with a dismissal order, and IBJI did not take part in any such proc eeding s. More sp ecifica lly, IBJI ’s first a

ttorney , Sparac io, filed t

he compla

int in May 2005, was notified the Sher iff’s deputy c ould not serve the defendant in June or July 2005, went back to the courthouse in July 2005, with an ex parte motion for appointment of a special1-08-2739

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process server , and died

later tha t summer. I

BJI’ s next involv ement in the case was throug h its second a ttorney , who file d a motion to

vacate the two dismissal ord

ers ente red whe n Sparac io failed to appear for status dates in November 2005. I BJI did not participate in proceeding s that were inc onsistent w

ith the DWP. K

ime cites Governa le , 147 Ill. App. 3d at 596, for the proposition that his c onduct al one could result in r

evestme nt. To the e

xtent that Governa le suggests one litigant can re vest a trial court with jurisdiction, it is misleading. Governa le , 147 Ill. App. 3d at 596. Revestment cases, eve n Governa le , requir

e the active par

ticipation of both litigants but give particular emphasis to conduct of the par ty who would have be

nefitted from the dismissal order. See e.g., Governa le 147 I ll. App. 3d 596-97 (w

here pa rties ag reed to p ermit a personal injury ac

tion to be dismissed while plaintiff was undergoing additional medical car e, plaintiff refiled the complaint, and the three defenda nts answered it, revestment had occurred a nd the defendants could not rely on the dismissal), citing Gentile , 131 Ill. App. 3d at 254-56 (“neither party

considered the May

1980 dismissal order as a final and binding judgment”, “[b]oth plaintiff and defendant appeared before the court on numerous subsequent occasions,” and “both adopted positions inconsistent with the merits of the order since both treated the action as a cont inuing, v iable legal proce eding” ); Wilkins , 149 Ill. App. 3d at 554-55 (analy zing conduct of both parties, with emphasis on defendant’s because “litig ants may reve st a court which has general jurisdiction over a matter with both personal a nd subject matter jurisdiction after the entry of a final order,” but “the conduct relied upon must be by the party bene fitting from the dismissal order”) ; Stevens v. City of Chicago , 119 I ll. App. 2d 366, 372 ( 1970) (“ The elements essential to revesting of jurisdiction are (1) the ac tive participation of the parties without1-08-2739

1 Cf. A.A. Store

Fixtures Co., Inc. v. Shopiro , 272 Ill. App. 3d 959, 966 (1995) (“Defendant’s argume

nt that revestment cannot occur unless the other party knowingly wa

ives his rights appears nowhere in the case law.”) 10 objection, (2) in further proceedings inconsistent with the prior or der of dismissal.”); YugoslavAmerican Cultural Center, Inc. v. Parkway Bank & Trust Co., Inc. , 327 Ill. App. 3d 143, 149 (“The record post-DWP is repelete with examples of both parties active pa rticipation in the litigation.”). A third reason for rejecting revestment is that it is an equitable principle, and we fail to se e the fa

irness in a

llowing K

ime to benefit from the untime ly d eath of t he plaint iff’s fi rst attorney. F ourth, Kime was unaware of the DWP when he prese nted the §2-615 motion, and, therefore did not knowingly choose to ignore the DWP and continue litigating. Wilkins , 149 I ll. App. 3d at 555 (rejecting revestment bec ause “[u]pon being advised by the trial court that the cause ha d been dismissed, ** * defend ant did not

ignore the orde r or act ively particip ate in procee dings inc onsistent w ith the mer

its of the f

inal judg ment but a

llowed he r motion [to v acate defaults and answer the complaint] to be stricken from the *** call demonstrating that defendant consider ed the dis missal ord

er to be b inding a

nd final” ); Raichand v. National Republic Bank of Chicago , 265 Ill. App. 3d 531, 533 (1994) (“The r ecord shows that the defendants did not actively par

ticipate in the case once they learned it was dismissed”); Wilson v. Evanston Hospital , 257 Ill. App. 3d 837, 841 (1994) (“in case s employing the r evestment rule, it appears that the parties came before the court se eking judicial intervention, knowing of the court’s previously entere d order). 1 For any one of these four reasons, even if Kime’s pr esentation of the 2-615 motion in late November was inconsistent with the DWP entered in mid November, there1-08-2739

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was no re vestment. Thus, we conclude the sua sponte DWP order was still in

effec t when Kime prese

nted his 2-615 dismissal motion later that same month and that the DWP prevented him from addressing the merit s of the c omplaint. Furthermore, his characterizations of the 2-615 dismissal order are incorrect. He cites O’Fallon Development Co. v. City of O’Fallon , 43 Ill. App. 3d 348, 351-52 (1976), for the proposition that the second dismissal order was final and appealable bec ause it granted a §2-615 motion attacking the sufficiency of the plaintiff’s allegations. By definition, however, all §2-615 motions att

ack the s ufficie ncy of the pla

intiff’s allega tions (735 IL CS 5/2-615 ( West 2004) , thus, the motion i

tself is no t the prop er focu s of inquir y. What O’Fallon tells us is to “look to the substance of what was actually decided by the

dismissal order, rather than the form of the order, and if the effect is to decide that the basic alleg ations of the pleader, however stated, are insuffic ient as a

matter of law to sta

te a cau se of action, then

an order dismissing

the plea ding is a final, appealable order terminating the litigation between the parties.” O’Fallon , 43 Ill. App. 3d 352. The c ontents of

the dismiss al order

entere d on Novem

ber 29, 2 005, indic ate the c ourt did not consider whether IB JI’s basic allegations stated a c ause of action. The order specifies that the matter w as calle d for sta

tus only (“This ma

tter comi ng on sta tus on def endant’ s motion to dismiss”). Missing from the order or from the record on a ppeal are any

indications that the court anticipated or received oral arg uments regarding the substance of the 2-615 motion, that the court accepted written arguments in lieu of a hearing, or that the court ever c ontemplated the sufficiency

of IBJI ’s pleading. The order expresses no opinion about the persua siveness of1-08-2739

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Kime’s motion or the adequacy of IBJI ’s complaint. Instead, the court spec ifically attributed the dismissal to “counsel for defendant having appea red and counsel for plaintiff failing to appea r.” The cour t did not g

rant the §2-615 mot

ion beca use it dete

rmined I BJI’ s pleadin

g was de ficient, but because IB JI’s (deceased) law yer missed two status dates in a r ow (November 14, and November 29, 2005). The dismissal was based on a perce ived procedural misstep, rather than a pleading defect . Kime cor

rectly states tha t the substa

nce of the order

is contro lling, bu

t there is nothing in this order which can be construed as an a djudication of the dispute. We also point out that because the dismissal was prompted by a perceived procedural er ror which could not be cured by amending

the plea ding, the court ha d no reas on to indic ate the d ismissal wa s “with leave” to reple ad or wa s “without prejudic e” to re filing. Also, Kime ’s relia nce on Supreme Court Rule 273 is misplaced. The rule states: “Unless the order of dismissal *** otherwise specifies , an involuntary dismissal of an action, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join an indispensible party , operates as an adjudication on the merits.” (Emphasi s added. ) 134 I ll. 2d R. 273 . The cou rt in this in stance “ otherwis e specifie[d]” that the dismissal on November 29, 2005, was due to the absence of the plaintiff’s counsel rather than due to the court’s adjudication on the merits. We would have to disregard the plain terms of this order, the Supreme Court rule, and binding authority in order to find that the successive dismissal order was a final judgment order

. For these reasons, we find that the §2-615 dismissal order e ntered on November 29, 2005, was an interlocutory

order entered after the ca se had been DWP’d on November 9, 2005, and that the DWP remained interlocutory on June 9, 2008, when the court vacated both dismissal orders1-08-2739

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and reinstated IB JI’s cause of action. The orde r entered on June 9, 2008, did not grant relief from a fi nal judg ment orde

r pursua nt to §2-14 01of the C ode, and Kime’s r eliance on that sta

tute and Supreme Court Rule 304(b)(3) as the basis for our jurisdiction is incorrect. 735 I LCS 5/2- 1401 (West 2004); 210 Ill. 2d R. 304(b)(3). See also Progressive Universal , 331 Ill. App. 3d at 68 (where seven months lapsed between DWP and motion to vacate DWP, §2-1301(e) was proper v ehicle to

vacate the non-f inal orde r, not §2- 1401). Ac cordingly, without re aching his arguments about the merits of I BJI’s motion to vacate the dismissal orders and re instate the complaint, we dismiss Kime’s appeal for lack of jurisdiction. Appeal dismissed. J. GORDON and R.E. GORDON, JJ., concur.